Goodnow points out, this method of securing home rule for cities by constitutional limitations has largely been a failure (44). The unscientific character of the distinction between local officials who must be locally chosen, and others which need not be, is strikingly brought out by a recent case in Wisconsin. The question was of the validity of the appointment of a "county supervisor of assessment" of taxes in any other way than by election by the electors of the county in question. It will be remembered that the Wisconsin constitution required the local election of "all other county officers" except judicial officers (§ 33, above). The court limited the clause to those county officers whose offices were in existence at the time the provision was adopted, and, as the "county supervisor of assessment" held a newly created office, his office, though it pertained to the county, was not a county office within the meaning of the provision (45).

§ 36. What are municipal affairs? A problem very closely connected with that discussed in the preceding paragraph deals with the question of what are municipal as distinguished from state affairs. Upon this question, also, the courts are in conflict, and by the majority of them no scientific view of the matter has been taken. For example, in Commonwealth v. Patton (46) an act which affected the system of judicial administration was held void as violating the constitutional prohibition of special acts relating to the affairs of towns and counties. Surely on any scientific basis the administration of justice is a

state and not a local matter. The basis of the view of the courts is, of course, historical, as in the case of local and state officers. Whatever the localities have been in the habit of attending to in the past are local affairs; others are state affairs-seems to be the view of the courts. This, of course, ignores the dual function of the city as an agent for the satisfaction of local needs, and as an agent of the state in the administration of the state's laws. An Illinois case (47) follows the general trend of the New York metropolitan district cases discussed above. An act of the legislature provided for the incorporation of a sanitary district differing in area from any of the ordinary public corporations, and was upheld as not in conflict with the prohibition in the Illinois constitution against the incorporation of cities, towns, and villages by special act. The decision seems inevitable, and yet, as Mr. Goodnow points out, it opens the way to an almost complete nullification of the constitutional restraints (48). A few Ohio cases have clearly adopted as the test of municipal affairs the character of the power in question. Thus is was held that since the enforcement of the criminal law was a matter primarily of state importance, a special act providing for the appointment of a board of police commissioners in a city was not a violation of the provisions of the Ohio constitution forbidding the legislature to confer corporate powers by special act (49).

(47) Wilson v. Board of Trustees, 133 Ill. 443.

(48) Goodnow, Munic. Home Rule, 80.

§ 37. Other constitutional provisions intended to secure municipal home rule. In a few states, including Missouri, California and Washington, the attempt to secure home rule for the cities has taken the form of a constitutional provision permitting cities of a certain size to frame and amend their own charters, subject of course to the constitution and general laws of the states (50). Of course it will be necessary under such provisions for the court to draw the line between state and municipal affairs, as the constitution obviously is not intended to allow the cities to acquire a vested right in the administration of state matters. In New York a new form of home rule is provided for. After classifying cities according to population, the constitution defines general city laws as those affecting all the cities of one or more classes, and special city laws as those affecting less than all the cities of a class. Special city laws are not prohibited, but every city bill must be transmitted.immediately after passage by the legislature to the mayor of the city affected. by it, and, after a public hearing, the mayor, or the mayor and the city council concurrently, shall signify their approval or disapproval of the bill in question. If disapproved, the bill must be re-enacted by the legislature if it is to become a law. If the city authorities fail to act within fifteen days after receiving a copy of the bill, it is deemed disapproved (51).

CHAPTER III.

THE LIABILITY OF PUBLIC CORPORATIONS FOR TORTS.

§ 38. Conflicting principles applicable to the problem. It is a general principle of English and American law that the government cannot be sued without its consent. (See the article on Constitutional Law, § 368, in Volume XII of this work.) Accordingly a state government, unless it consents, is not liable to suits for damages, either for breach of contract or for torts. It is obvious that public corporations, although they are parts of the governmental machine, are not wholly subject to this principle, for one of the objects of creating a corporation is to enable it to sue and be sued as a legal person. This being so, and it accordingly being clear that a public corporation as such is not exempt from suit, the question arises as to the extent of the liability of the corporation, both for breaches of contract and for torts. The contractual liability will be dealt with in Chapter IV, below, and so will be passed over here. Turning our attention, therefore, to the question of tort liability, we need to bear in mind first of all that originally what are now called quasi-municipal corporations were not corporations, and consequently could not be sued at all. For example, in the leading case of Russell v. Men of Devon (1) an action was brought against the inhabitants of the county of Devon in England. It was held that the action could

(1) 2 Term Reps. 667.

not be maintained, as the men of Devon were not a corporation. The same rule originally obtained in America, as is shown by the Ohio case of Hamilton County v. Mighels (2) in which suit was brought against the board of county commissioners for injuries to the plaintiff due to the negligence of the board in maintaining the county courthouse in an unsafe condition, the plaintiff having been injured while attending court as a witness in a law suit. It was held that as the state laws did not make the county or the board of county commissioners a corporation, the suit could not be maintained. "A county," said the court, "is organized most exclusively with a view to the policy of the state at large, for the purposes of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organizations, of the means of travel and transport, and especially of the general administration of justice." Today, however, counties are generally made bodies corporate, with capacity to sue and be sued, so that the former reason for their non-liability has disappeared. The same is true of the town. We shall find, however, that it is still true that these quasi-municipal corporations are, as a rule, not liable for their torts, for the reason that they are still, in spite of the fact of incorporation, chiefly agents employed by the state for state administrative purposes, and so are regarded as entitled to share in the state's immunity from suit. On the other hand, cities and villages have always been corporations, and in spite of that have always been held exempt from suit for